Friday, March 9, 2012

Oh Flickr, You've Been Degbanned

This is a follow up post. It'll make more sense if you've read the first in the saga, but for those joining the story here, let me give you a brief synopsis of the tale so far:

January 12, 2006: I post a photo to Flickr. The photo leads a happy, productive life, making lots of friends around the internet.

February 17, 2012: I receive an email from Flickr telling me that the photo has been deleted because a company called Wasteland, Inc. has filed a copyright claim on it.

February 17, 2012: I file a counterclaim to Flickr's owners Yahoo.

March 2, 2012: I receive an email from Flickr telling me that my counterclaim has not been challenged and that I am now allowed to repost my photo.

March 3, 2012: I discover that Wasteland, Inc - who turned out to be a pornography company specialising in fetish and bondage work - had hired a "multimedia copyright protection company" called Degban to handle their copyright claims.

March 4, 2012: I email the CEO of Degban, Taban Panahi, to ask him how on earth they came to believe my photo was copyrighted by Wasteland. His, somewhat odd reply, tells me that Degban has been subject to a hacking attack and that it's not their fault and that I shouldn't be angry at him and that actually I should feel sorry for him and anyway his dog ate his homework... Or something like that.

All this means that I've been bombarded with information and comments, here, on twitter, on flickr, via email and elsewhere. And to varying degrees, I've been in communication with the three companies involved. I've gathered more information and some fresh perspective on things. I'll divide it into three parts.

Part 1: Degban

Since my preposterous Taban Panahi-mail we have had two phone conversations. They have been as preposterous as the email.

Selected Highlights:

"I'm pretty sure... I'm very sure... some idiot in my company just thought the password is too long, I'm going to change it to 1 2 3"),

"when I'm in London I will buy you a beer, you can see that I am genuine, I'll apologise in person and, if you are angry enough you can even punch me, I wouldn't mind, ok?"

The main thing was that Taban was sticking to his story. They were hacked. It wasn't his fault. He wants to be friends. I'm being unreasonable. He was thinking of offering me a job. I should be careful. It's not his fault. They were hacked.

I have no idea if Degban were hacked or not. It doesn't sound like a credible explanation to me. It sounds like someone trying to distance themselves from something because they know it has legal repercussions. But that doesn't mean it isn't true.

The first public comment from Degban that I saw, was in the AVN piece:

"On February 29th, our SMTP server was accessed by an outsider through a password phishing scam," the company said. "The intruder then used our SMTP server to report legitimate content as piracy, using our own Take-Down notice templates. This was done to reduce our credibility with hosting companies..."

There's much more of it and you can read it in the article if you fancy, but it's the first three words that interest me. On February 29th.

Hmm.

My photo was deleted from flickr on February 17th. Those hackers are much more sophisticated than I imagined.

But other holes were starting to appear in their story too. Because other people were scrutinising what they do. Thanks to ChillingEffects there are plenty of examples of them filing bogus takedowns. The Torrent Freak article explains how, of the 82 takedowns they issued for the porn star Destiny Dixon, 25 were incorrect. (When you learn that the incorrect takedowns included albums featuring Destiny's Child and Alesha Dixon you start to see quite how unsophisticated it is)

So I did some digging to see if any of the takedowns issued by Degban on behalf of Wasteland were similarly, obviously, out of whack.

This is a notice they sent to Google on January 31:Numbers 0, 2, 4, 6, 8, 11, 13, 16 and 20 relate not to porn produced and owned by Wasteland but to an episode of the TV show, Dexter called, Teenage Wasteland. In this example, and the one discovered by Torrent Freak, above, over 30% of their takedowns are aimed at the wrong target.

There are countless other examples. On January 29 they issued 38 takedowns for the game, Tony Hawk's American Wasteland as well as several for an audio recording by the American comic, Patton Oswalt (called Zombie Spaceship Wasteland), a film called Children of the Wasteland, Music from Pete Doherty (Grace Wasteland) , music from In This Moment (A Star Crossed Wasteland) and more episodes of Dexter. On January 30 they took down Children of the Wasteland and an album called This Present Wasteland by The Church. There are more obvious mistakes on February 1, February 4th and again on February 4th.

Now it might well be that each of these examples was infringing someone's copyright. But it shows that their system churns out false positives and the checks and balances required to oversee it are simply not in place. And if you're hitting false positives, not all of them are going to be infringing.

Like, say, for example... mine.

Degban works almost exclusively for the porn industry. It's an industry that feels very threatened by piracy and so anyone offering a solution is bound to be tempting. But there's no real excuse for a company that fires off DMCA takedowns without double checking that the content is infringing on their client's copyright. In those few links there are more than 100 bad takedowns. All sent in the name of Wasteland. You can't have that kind of hit rate and not hit innocent parties.

Part 2: Wasteland

The CEO of Wasteland left a comment on my previous blog post. I emailed him. We've exchanged quite a few emails since. So far, I don't think he's put a foot wrong. Apart from hiring Degban obviously. He seems appalled and embarrassed by what has happened in his company's name and is keen to hold Degban to account. He's certainly the nicest pornographer I've ever dealt with.

That was a short part. Part three is going to be long. Shall we have a cup of tea first?

Now...

Part 3: Flickr/Yahoo

I think this is the part that disappoints me most. It's saying something when the only one of the three companies to come out on the front foot and offer to communicate with me is Wasteland. But that's what's happened. Congratulations, Yahoo! Your conduct is worse than that of the pornographers in this tale.

I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.

But putting the lack of communication to one side (there are reasons) it's flickr's ham fisted interpretation of the DMCA that I think is inexcusable. And here's where my perspective has shifted somewhat. Because since all this erupted I've read the Digital Millennium Copyright Act in some detail. And I've looked around at other sites and the way they handle takedown notices. And I can't find one site that does it quite like flickr. They're all subject to the same laws... so you'd think they'd have established the same policies too.

The terms of the DMCA dictate that when someone files a copyright claim the service provider - in this case, flickr - is obliged to: respond expeditiously to remove, or disable access to, the material that is claimed to be infringing.

And when a user - in this case, me - files a counter notice that goes unchallenged for 14 days, flickr is obliged to replace the removed material and cease disabling access to it.

But flickr have not replaced the material they removed. They removed the whole page. Not just the photo but everything that went with it. And they've replaced not one jot of it.

Flickr's policy on this is complicated. If both parties are based in the US they don't delete the content. They just disable access to it - hide it - until the issue has been sorted out. It's only when one or both parties are not US based that it pans out in this clumsy and unsatisfactory way.

Earlier this evening - as I was writing this post - flickr's senior community manager, Zack, sent me an email asking if he could call me. It's the first time flickr have tried to communicate. Finally. I thought we were getting somewhere.

We weren't. We had a lengthy phone conversation. It achieved nothing. I liked Zack. He's not a preposterous idiot, like Taban, but he seems hamstrung by his job, seemingly unable or unwilling to answer almost any question in case that somehow gets him into trouble further down the line.

We could agree that my photo was not infringing any copyright and that I had paid flickr to host it and that they had deleted it... but not that they should replace it.

When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.

I don't believe Zack's employers are giving him the tools required to do his job."If it's possible to replace the photo, will you do so?""Ack... I ... um... that's tricky... I can't say yes to that.""But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?""Yes.""And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?""Well... no.""So promise me that if it's possible to replace it, you will replace it.""I don't think I can do that."

Sigh.

The thing that intrigued me most was that several times Zack repeated the assertion that he found it highly unlikely that any company would ever explain its policies on things like this. I disagree. That's not been my experience at all.

Flickr is a photo-sharing site. It does not want to delete its customers' photos.If it didn't want to delete my photo then it must have felt compelled to do so.In my experience companies always explain when they are compelled to do something that they don't want to do. Especially when they know their customers won't like it.Why wouldn't you pass the buck and blame the big, bad authority that's making you do the unpopular stuff?

"I'm sorry guv, I'd love to give you another drink but we're only licensed til 1am so I have to stop serving," makes much more sense than, "I'm sorry guv, I'd love to give you another drink but I'm not going to and nor will I explain why."Of course the alternative is that it's just a badly formulated policy. In which case... just change it.

I'm much more interested in seeing them change the policy going forward than I am in seeing this one picture replaced. And it's not as if I'm asking them to defy the DMCA. They're already doing that. I'm just asking them to obey it.

22 comments:

I think the issue with Yahoo/Filckr boils down to jurisdiction. DCMA is US Federal Law, there to protect the rights of US citizens. As companies registered in the USA, Yahoo and Flickr have to comply with the Act, and if a US citizen files a successful counter notice then the companies are compelled by the Act to restore it.

I'm not a lawyer, but I'd assume that, as a UK citizen, you aren't afforded the same protection under US Federal Law. Perhaps you knew this already, and you just wanted someone in authority to say it, in which case I apologise for stealing your thunder.

DougCByron:"I'm not a lawyer, but I'd assume that, as a UK citizen, you aren't afforded the same protection under US Federal Law."

Me: I'm not sure that this stacks up as an argument. For a start, in order for my counter claim to be valid, I had to submit to that jurisdiction. So surely I should have access to the remedy available under that jurisdiction.

But more to the point. Whether I am afforded the same protection or not, Yahoo would have to have a bloody good reason for not giving it me. If they're deleting something they don't want to delete the reason has to be that they had to do it not that they didn't have to not do it.

"Yeah... we know that you pay us to look after your stuff... but there's no law saying we don't have to delete some of it so we deleted some of it" doesn't really make for a good business model.

Besides, US customers are not automatically afforded the same protection. If a photo belonging to someone is the US is subject to a copyright claim from outside the US they delete the content too.

Youtube don't do that. They disable access to all of it. They're subject to the exact same laws. What do their lawyers see that Yahoo's don't and vice versa?

As far as I can tell (and I think this is borne out by your convo with Flickr dude), all any company like this wants to do is cover their ass. As far as policy and doing things the right way are concerned, it can all go out the window as long as their ass is covered.

The whole debacle just refuses analysis because there is no logic or policy to it - MUST. COVER. ASS. is the long and the short of it. Sadly.

@Dominic Sayers: you're right that that's not an explanation. It's a statement that this is our policy not an explanation as to why it is. And it makes it more confusing because it carries with it the idea that they would like to do it differently but don't feel able to.

In such circumstances I'd say it was normal to explain what law leaves you hamstrung like that.

@Timmeh: it's more that I had no idea what to expect from the pornographers either way.

Don't forget that my starting point was, These are the people who've hired Degban.

They could have done so knowing what Degban were like and not given a stuff. Or they could have done so not knowing and still not give a stuff. I had no idea and no expectation.

But it seems logical to me that pornographers might be less concerned with reputational damage than a more customer-centric business might.

If a high street store annoys too many of its customers it loses some business. If a pornographer does the same... do they? I don't know. Do their customers organise and discuss where they will go instead for their pornography needs?

This would be in the realms of speculation, but the different treatment of non-US parties might be due to a belts and braces approach on the part of the legal department to ensure that it not only complies with the DCMA but also with equivalent laws in other jurisdictions. Yahoo! Is an international company and may be subject - via its branches and subsidiaries - to more than one set of laws. The equivalent EU law for example, does not include a "put back" obligation (something many of us have bemoaned for years) and there may be others out there that require straightforward "removal" rather than giving the provider the choice between removal and " disabling access" (although I am not aware of any).

Overall, though, I agree that their approach has been clumsy at best, pig-headed at worst. Plus, of course, there was never any need to remove the comments anyway, since they were presumably not covered by the infringement notice. That bit was a business decision.

This story, with bells on and covering 25 petabytes of people's data, is the story of MegaUpload.

Sure, the probability that MegaUpload hosted content that fell under regressive copyright laws is fairly high, but that was one aspect of the MegaUpload story. They also provided file hosting/sharing services to paying customers who used the service to store their own data that breached no laws, but those users in the eyes of the media cartels and the U.S. state were of no consequence. So their data is now seemingly irretrievably gone for good.

Taking-down and shutting-down MegaUpload involved an international conspiracy between big media business cabals and international law enforcement agencies in several countries, enforcing U.S. law outside of U.S. legal jurisdictions, and that aspect of the case should be of concern to any and all Internet users, particularly the majority of users who live outside of the U.S.

Part of the problem here is the way in which the Internet is viewed and by whom. It can be and is viewed by the minority interests of big business as a copyright breaching free-for-all playground.

However, the Internet can be and is viewed by ordinary Internet users as the single biggest, most resilient, distributed, digital archive of international human cultural activity that we as a species have ever seen, shared fairly equally between everyone, contributable to by everyone.

Private business interests are never going to be able to persuade Internet users that the latter description is a bad thing, hence why they have repeatedly resorted to force and ludicrously punitive measures in defence of a business model that died a long time ago.

Dave Gorman wrote:If a high street store annoys too many of its customers it loses some business. If a pornographer does the same... do they? I don't know. Do their customers organise and discuss where they will go instead for their pornography needs?

Do customers of pornography vote with their feet? I'd imagine that the ones with foot fetishes do.

I think you may have suffered from exposure to someone whose legal department infected him with "cover your backside anxiety syndrome". It's a common affliction in the legal profession. Our insurers insist and it takes years to produce antibodies.

I can only imagine how much harder it is to communicate with Flickr since they made a bunch of their great customer service people redundant. They had to cope with large volumes before and it was hard to get a real answer at times but when they locked down my account as needing moderating (someone had taken offense to the slightest glimpse of bare bottom) - I evetually got a human answer. I don't think anyone will be getting one of those any more. It's sad because Flickr used to have such a great community feeling.

@Ellie Warren: Yep. I tried to account for that in the blog without getting bogged down in even more words. There's a link in the "Putting the lack of communication to one side (there are reasons)" bit that takes you to a blog by Nolan Caudill on that subject.